New York Criminal Attorney Blog

New York Criminal Defense Law Firm, Tilem & Campbell, scored another major victory in a New York gun case when it won a complete dismissal of all charges in a Bronx County case yesterday. The original charges included Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree. The Defendant faced a minimum sentence of 3 and 1/2 years in prison on the Second Degree charge which is a class "C" violent felony.

The case was won using a little known Federal Defense that provides a defense to gun charges in all 50 states for those transporting firearms from one place where they may legally possess that gun to another such place if done so in accordance with federal law.

The victory comes on the heels of a string of major victories in the past three months for Tilem & Campbell which included another dismissal of felony gun charges in a Brooklyn Gun case in June and the sentencing earlier this month to house arrest for a person charged in Federal Court with trafficking in a large number of firearms from Texas to New York. Unfortunately, the firm suffered one loss back in June when a Tilem & Campbell client was convicted by a jury of gun possession.

Yesterday's case received significant media attention with articles being published around the web about the use of the Federal Defense to defeat one of New York State's stringent gun laws. Articles appeared on Forbes.com , Reuters and the Earth Times to name just a few of many articles.

To speak to an attorney about the Federal Travelers Defense or any Weapon or gun related issue contact an attorney at Tilem & Campbell or visit handgunattorney.com

Another compelling reason not to allow the issuing officer to also act as the prosecutor in a New York traffic violation case is supported by the Latin maxim “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. This ancient rule of statutory construction is codified in New York McKinney's Statutes § 240 titled “Expression of one thing as excluding others”.

Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467, 254 N.Y.S.2d 143 (1964) (Holding that the express grant of power to one person excludes by implication the grant of same powers to another.)

Applying this rule to situations where non-attorneys may represent others in New York, if the New York State Legislature enacted a statute which expressly described what class of non-attorneys could represent other people in court, an irrefutable inference arises that those non-attorneys not described in the statute may not represent others in a court or other quasi-judicial proceeding.

Indeed, the New York State Legislature has in fact enacted a law prohibiting a non-attorney from appearing as an attorney except is certain delineated circumstances. New York Judiciary Law § 478, titled “Practicing or appearing as attorney-at-law without being admitted and registered” makes it unlawful for those who have not been duly admitted and licensed to practice law in New York Courts from acting or holding themselves out as attorneys.

The same statute however, goes on to specify certain categories of non-attorneys that may otherwise act in an attorney like capacity despite the fact that they are not duly admitted to practice in the State of New York. For example, law students who have completed two semesters of law school or who are awaiting their bar exam results may, under the supervision of the Legal Aid Society or other government agency such as the District Attorney’s Office, partake in lawyerly activities otherwise prohibited for non-lawyers. Jud. Law § 478

In Section 484 of the Judiciary Law titled: “None but attorneys to practice in the state” the New York State Legislature again reiterated that only duly licensed attorneys may practice in New York but this statute virtually mirrors Jud. Law § 478 by specifically identifying those non-attorneys that may, under proper supervision, perform legal representation otherwise not allowed by non-attorneys. To summarize, law students or those awaiting their bar exam results may appear as attorneys, under proper supervision, for the Legal Aid Society and the District Attorney’s Office.

The most telling exemptions found in both Sections 478 and 484 of the Judiciary Law pertaining to non-attorneys appearing as attorneys is the exemption allowing officers of societies for the prevention of cruelty to animals to appear, under proper supervision, to prosecute appropriate cases. This exemption establishes that the Legislature has specifically authorized a particular law enforcement officer to act in an attorney/prosecutorial like role. Therefore, under the doctrine of “inclusio unius est exclusio alterius”, the Legislatures express inclusion of one type of enforcement officer that may act in a prosecutorial capacity creates an irrefutable presumption that no other law enforcement officer may act in a prosecutorial capacity.

There are numerous other examples of where the Legislature or an agency acting pursuant to Legislative authority specifically authorizes a non-attorney to represent individuals. See for example:
• NY Labor Law § 538 specifically allows a claimant to be represented by a representative who need not be an attorney.
• 18 NYCRR 434.5(d) which allows one appealing a finding of abuse or neglect to be represented by an attorney or other “representative” at a fair hearing.
• 15 NYCRR 124.1(b) which allows a motorist charged with a traffic violation in the Traffic Violations Bureau “the right to the assistance of counsel or other representative”.

It should be noted now however, that the Legislature, while authorizing non-attorneys to act as attorneys in certain circumstances, has never authorized the officer who issued the New York traffic ticket to act as a prosecutor. Under the doctrine of “inclusio unius est exclusio alterius” as codified in McKinney’s Statutes § 240, the fact that the Legislature specifically allowed certain non-attorneys to act as attorneys infers that the Legislature intentionally excluded other non-attorneys, such as police officers and State Troopers from acting as attorneys.
Clearly, the above statutes and regulations establish that the Legislature has statutorily created certain situations where non-attorneys make act as attorneys. The Legislature however, did not include local police officers or New York State Troopers in these categories.

The Queens District Attorney’s Office announced the indictment of a Dutch man for his role in spraying graffiti on a subway car in Queens and then taking police on a foot pursuit on the subway tracks. The cases focuses attention on the serious charges associated with graffiti in New York including Criminal Mischief, Making Graffiti and Possession of Graffiti Instruments. It also focuses attention on “Graffiti Tourism” a growing phenomenon in this area.

Criminal Mischief in New York is a crime involving damaging property (either intentionally or recklessly) and is generally a misdemeanor punishable by up to one year in jail. Damaging property in an amount exceeding $250 can be charged as a class “E” Felony punishable by a prison term of up to 4 years and damaging property in an amount exceeding $1500 is a class “D” felony punishable by up to seven years in prison.

The problem is that the threshold amounts have not been changed since 1971 and when the New York State Legislature amended the Grand larceny Statutes in 1986 they forgot to amend the Criminal Mischief statutes. In practice, that means that if you steal property worth $300 you are only guilty of a misdemeanor but if you damage property worth $300 you are guilty of a felony.

In 1992 the New York State Legislature added Making Graffiti and Possession of Graffiti Instruments to the New York State Penal Law. Making Graffiti is a class “A” misdemeanor punishable by up to one year in jail and Possession of Graffiti Instruments is a class “B” misdemeanor punishable by up to 90 days in jail.

Making Graffiti involves painting, etching, covering or drawing upon either private or public property with the intent to damage property. Possession of Graffiti Instruments involves possessing tools commonly used to make graffiti such as paint or magic markers under circumstances that show an intent to use those tools to damage property.

New York City and other cities such as White Plains, Yonkers and New Rochelle have worked hard recently to rid their streets of graffiti. Those charged with making Graffiti or other Graffiti related charges often face very aggressive prosecution. It is important to remember that all offenses relating to graffiti are crimes and one charged with any of these offenses should contact an experience New York Criminal Defense Lawyer as soon as possible.

Many times at the New York Criminal Defense Firm of Tilem & Campbell we are contacted by individuals who have been charged with Aggravated Unlicensed Operator (VTL § 511) resulting from the suspension or revocation of their New York State driver’s license or the suspension or revocation of their privilege to drive in New York if they are an out-of-state resident. This charge is not simply a traffic violation but it is a serious criminal matter that could result in a misdemeanor conviction.

While I will not discuss the details of the Aggravated Unlicensed Operator charge in this blog, I will discuss a key element of the charge that must be attacked in order to defeat the charge. (It should be noted however that if the defendant clears up the underlying suspensions that resulted in the Aggravated Unlicensed Operator charge most, if not all, prosecutors will agree to reduce the charge to a non-criminal traffic violation. If however, the defendant has multiple Unlicensed charges, was intoxicated, injured someone or if some other aggravating factor is present, their might not be an offer and the case must be fought because a criminal record hangs in the balance.)

What is the key element to attack in an Aggravated Unlicensed Operator charge? It’s the know or having reason to know that your license was suspended or revoked element that must be attacked. In order to be convicted of Aggravated Unlicensed Operator, the People must prove that you knew or had reason to know that that your license was suspended or revoked. How can the People prove this? New York Vehicle and Traffic Law section 214 basically states that if the DMV produces an affidavit from an employee explaining the procedures DMV follows for mailing suspension or revocation notices and if electronic copies of such notices are presented in court, there is a statutory presumption that such notice was mailed.

However, all VTL § 214 establishes is a presumption that the suspension or revocation notice was mailed. The prosecutor has a much harder burden to prove that the defendant actually received such notice. Since the United States Supreme Court holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004], an affidavit such as the one described in VTL § 214 cannot be introduced into evidence by the People to prove defendant's knowledge that his license had been revoked. To do so violates the defendant’s constitutional right to confront the witnesses against him. People v. Pacer, N.Y.3d 504, 847 N.E.2d 1149 (2006).

In Pacer, the New York Court of Appeals noted that the affidavit prepared by the Department of Motor Vehicle employee was critical to the People’s case but without that employee being actually present and subject to cross-examination the defendant had no means of cross-examining her on a critical element of the charge. For example, the defendant had no chance to question the DMV employee about whether the DMV ever made mistakes with their mailings or whether the mailing was returned to DMV undeliverable. Also, another key point in this case was the fact that the mailing in this case was alleged to have taken place 16 years earlier yet the affidavit prepared for court was prepared by a DMV employee who did not work for DMV back then and had no idea about DMV procedures for mailing notices back then.

A defendant however, must specifically raise a Crawford objection to the introduction of a DMV affidavit without a DMV employee present to cross-examine. (People v. Kello, 96 N.Y.2d 740, 744, 723 N.Y.S.2d 111, 746 N.E.2d 166 [2001] [“defendant's failure to raise a Confrontation Clause objection precluded the trial court and prosecution from considering and, thus, avoiding any constitutional error].

If a lawyer fails to raise the objection, your right to confront the DMV employee might be forever lost. As a result treat the charge of Aggravated Unlicensed Operation of a Vehicle with the seriousness that it deserves. Hire a New York criminal defense lawyer experienced in handling these types of cases. If you or a loved one is charged with Aggravated Unlicensed Operation contact one of the lawyers at Tilem & Campbell

In a previous blog I explained that one doesn’t not have a statutory right to a speedy trial in a New York traffic violation case (such as speeding, red light, stop signs violations, etc). Does this mean that a New York court can take years to schedule your trial? The answer is yes and no. While there is no statutory right to a speedy trial in a traffic violation case, the courts have held that one charged with a New York traffic violation has a constitutional right to have his or her trial held within two years. This constitutional right is found in CPL § 30.20 which basically states that after a criminal prosecution is commenced the defendant is entitled to a speedy trial. This section does not set forth what constitutes a speedy trial however. It also applies to traffic violations because for purposes of procedure, traffic violations are treated as misdemeanors. See VTL § 155. The Sixth Amendment to the United States Constitution also guarantees a right to a speedy trial even in traffic violation cases.

Numerous New York court cases have held that the speedy trial provision found in CPL § 30.20 applies to traffic violation cases. The question becomes therefore, what is considered an acceptable time frame within which one charged with a New York traffic violation must be brought to trial in light of CPL § 30.20? Two years seems to be the limit provided the delay is not caused by the defendant. Below are reviews of relevant cases:

In People v. Thorpe, 160 Misc.2d 558, 613 N.Y.S.2d 795 (1994) the Appellate Term dismissed a conviction due to an unexplained two year delay in bringing the case to trial. This is the case to rely on when making a speedy trial motion. See also People v. Matera, 2003 WL 21974065 (N.Y.Sup.App.Term), 2003 N.Y. Slip Op. 51180(U)(unexplained delay of over two years in bringing traffic infraction to trial warranted dismissal); People v. Rogoish, 2003 WL 21700087 (N.Y.Sup.App.Term), 2003 N.Y. Slip Op. 51120(U)(unexplained delay of over three years in bringing the traffic infraction to trial warranted dismissal)

Therefore, if you are charged with a traffic infraction in New York and never receive a trial notice, don’t call the court. Contact an experienced traffic court firm such a Tilem & Campbell and we will run your license to ensure that you didn’t miss a date. Then we will sit back and wait. If the trial notice comes more than two years later, Tilem & Campbell will file a written motion seeking dismissal. Finally, the above analysis and laws do not apply for tickets handled by the DMV Traffic Violations Bureau. Those tickets have are handled under a different set of rules which I will discuss in a future blog.

This time in a Federal Gun Case involving the Interstate Transportation of Firearms, the New York criminal defense law firm of Tilem & Campbell scored another huge victory when Federal District Judge Stephen Robinson refused to sentence Tilem & Campbell's client to prison. Instead, the defendant was sentenced to two years of Probation with a portion of that time being on home detention. The sentencing victory capped a long fought case in which both the Probation Office and the United States Attorney's Office were asking for a term of imprisonment.

The case was handled by Tilem & Campbell's senior partner, New York Attorney Peter Tilem, who himself was a prosecutor in the Firearms Trafficking Unit of the New York County District Attorney's Office. Tilem & Campbell, a White Plains based law firm, handles a wide variety of gun cases in both New York State and Federal Court and maintains the website handgunattorney.com.

The case was handled in the United States District Court for the Southern District of New York and was before Judge Stephen Robinson sitting in the Federal Courthouse in White Plains.

Tilem & Campbell handles a wide variety of federal and state firearms and other weapon crimes as well as many other types of criminal cases. For more information contact the law firm of Tilem & Campbell.

New York Criminal Defense Attorney's John Campbell and Peter Tilem spent the morning,yesterday, on The Pulse 87.7 FM talking about criminal law and answering listeners' questions. Peter Tilem and John Campbell were on the Star and Buc Wild morning show during the 8:00 am hour and ended up staying until 10:00 am talking with Star, DX 21 and White Trash Helene while listeners phoned and E-Mailed in their legal questions and even an NYPD Sergeant E-Mailed in his question concerning arresting people for Possession of Rifles in New York City.

Tilem & Campbell sponsored breakfast for the show and a great time was had by all; both Peter Tilem and John Campbell were invited back to come on the show in the near future. Yesterday's appearance was videotaped and will be posted on this blog as soon as the video becomes available.

The simple fact is, a motorist charged with a New York traffic violation has no statutory right to a speedy trial. The denial of a statutory right to a speedy trial in a New York traffic violation case is yet another example of the New York Judiciary completely disregarding the laws duly enacted by the Legislature and imposing their own will. It is yet another example of what I consistently refer to as judicial supremacy as opposed to judicial oversight. Such rulings by the courts quite simply amount to a judicial hijacking of the legislative role thus destroying the separation of powers.

A review of the relevant laws reveals that the Courts' denial of speedy trial rights in traffic violation cases (as well as the denial of other rights in traffic violation cases) is completely contrary to the clear and unambiguous wording of the laws; laws that the judiciary is constitutionally obligated to enforce and carryout whether they agree with them or not.

First of all, the New York State Legislature has determined that, with some exceptions, traffic “violations shall be deemed as misdemeanors and all provisions of law relating to misdemeanors . . . shall apply except that no jury trial shall be allowed for traffic infractions.” See VTL § 155. Therefore, if the Legislature has determined that traffic violations are to be treated procedurally as misdemeanors, under what possible theory could the speedy trial statutes not apply? See for example People v. Solomon, 1984, 124 Misc.2d 33, 475 N.Y.S.2d 749 (1984) where the court held that the right to speedy trial does not attach to actions commenced for traffic violations. See also People v. Howell, 158 Misc.2d 653, 601 N.Y.S.2d 778(1993)(Speedy trial statute applies only to felonies, misdemeanors, and violations, and “violation” is specifically defined to exclude traffic infractions.)

Under what possible theory of statutory construction could the Solomon court have concluded that statutory speedy trial rights do not apply to traffic violations in light of the clear wording of VTL § 155 which states that traffic violations shall be treated as misdemeanors?

In fact, NY CPL 30.30(1)(d) states that when a defendant is charged with a violation, the People must be ready within 30 days of the commencement of the criminal action. However, the courts have literally hijacked the legislative authority by ruling that the speedy trial provisions found in CPL 30.30 don’t apply to traffic infractions. If you are charged with a traffic violation in New York and more than two years have passed since the time you received the ticket and the time your trial is scheduled, contact Tilem & Campbell because while you may not have a statutory right to a speedy trial on a traffic violation case, you do have a constitutional speedy trial right which usually takes effect at about two years. In a future blog I will discuss the constitutional speedy trial right you have when charged with a traffic violation.